USA. Dove

• Decision Date: 25 January 2001
• Docket Number: No. 00-4248,00-4248
• Citation: 247 F.3d 152
• Parties: (4th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RAY DAYTON DOVE, JR., Defendant-Appellant. Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 152

247 F.3d 152 (4th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RAY DAYTON DOVE, JR., Defendant-Appellant.

No. 00-4248

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Argued: January 25, 2001

Decided: April 13, 2001

Appeal from the United States District Court for the Western District of Virginia, at Charlottesville. James H. Michael, Jr., Senior District Judge.

(CR-99-69, CR-99-83)

COUNSEL: ARGUED: Frederick Theodore Heblich, Jr., Charlottesville, Vir- ginia, for Appellant. Jean Barrett Hudson, Assistant United States Attorney, Charlottesville, Virginia, for Appellee. ON BRIEF: Robert P. Crouch, Jr., United States Attorney, Charlottesville, Virginia, for Appellee.

Before WILLIAMS and TRAXLER, Circuit Judges, and Raymond A. JACKSON, United States District Judge for the Eastern District of Virginia, sitting by designation.

Vacated and remanded with instructions by published opinion. Judge Williams wrote the opinion, in which Judge Traxler and Judge Jack- son joined.

OPINION

WILLIAMS, Circuit Judge:

Ray Dayton Dove, Jr., pleaded guilty to an information charging that he violated the Lacey Act, 16 U.S.C.A. SS 3372(a)(2)(A), 3373(d)(1) (West 2000), in November and December 1998, by selling or offering to sell black bear gall bladders ("galls") in Virginia in vio- lation of Va. Code Ann. S 29.1-553 (Michie 1997 & Supp. 2000), and placing them in interstate commerce. He also pleaded guilty to an indictment charging that he conspired to sell or offer galls and black bear paws for sale knowing that these items were transported in inter- state commerce in violation of the Lacey Act, 18 U.S.C. SS 3372(a)(2)(A) & 3373(d)(1)(b), and Va. Code Ann. SS 29.1-553 (Michie Supp. 2000). Dove argues on appeal that the district court erred at sentencing in including as relevant conduct his sale of 118 galls to an undercover agent (the 118 galls sale) because that sale occurred in West Virginia, where the sale of galls is legal. Dove also challenges the district court's estimation of the value of the galls. We vacate Dove's sentence and remand for re-sentencing because we conclude that neither Dove's sale of the 118 galls nor his offer to sell the 118 galls was illegal under Virginia law and thus was not properly included as relevant conduct under the Guidelines.

I.

Dove operated a store in West Virginia where he was licensed to deal in furs, hides, deer antlers, and bears. Between 1996 and 1998, he sold bear galls to Bonnie and Danny Baldwin, both Virginia resi- dents. Dove delivered the galls to the Baldwins in Virginia. The Bal- dwins resold the galls to Asian customers from northern Virginia, Washington, D.C., and Baltimore. In October 1998, Agent W.K. Stump of the Virginia Department of Game and Inland Fisheries arranged to buy bear galls from Dove, representing that he, too, intended to sell the galls to Asian customers. Dove drove to Abing- don, Virginia, and delivered eleven galls to Stump. In November and December 1998, Dove shipped a total of fourteen galls to Stump in Virginia. In January 1999, a final sale of 118 galls was arranged through a series of telephone calls between Stump in Virginia and Dove in West Virginia. Dove agreed to weigh, inspect, and put bear tags on each gall, and they agreed on a price and a date and time when Stump would come to get them. On January 18, 1999, Stump, accom- panied by several agents, drove to Doves store in West Virginia and purchased the galls.

After his guilty pleas, Dove objected unsuccessfully to the inclu- sion of the 118 galls sale as relevant conduct and disputed the proba- tion officers estimation of the value of the galls. The district court included the 118 galls sale as relevant conduct, and, after awarding a two-level downward departure for acceptance of responsibility as well as applying a five-level enhancement for the market value of the galls sold, the district court found a total offense level of 12 under the United States Sentencing Guidelines, which, in conjunction with Dove's lack of prior criminal history, yielded a guideline imprison- ment range of 10 to 16 months and a supervised release range of two to three years. Without the inclusion of the 118 galls sale as relevant conduct, Dove would have received a four-level, rather than a five- level, enhancement for the value of the galls (using the district court's valuation method), and his offense level would have been 11, yielding an imprisonment range of 8 to 14 months. The district court sentenced Dove to 5 months of imprisonment and 36 months of supervised release, with five months of his supervised release term to be served as home detention.¹ Dove contends on appeal that the 118 galls sale was not criminal conduct because it occurred in West Virginia where the sale of bear galls is lawful. The Government argues that the 118 galls sale "in its entirety" violated Virginia law, and that the 118 galls were correctly included as relevant conduct. The critical issues on appeal are whether Dove violated Virginia law and, separately, the Lacey Act in connection with the 118 galls sale and the propriety of the district court's method of valuing the galls sold.

II.

We review the district court's factual findings at sentencing, including the determination of relevant conduct, for clear error. See United States v. Fletcher, 74 F.3d 49, 55 (4th Cir. 1996). Review of pure questions of law relative to a guideline determination when the relevant facts are undisputed is de novo. United States v. Ruhe, 191 F.3d 376, 390 (4th Cir. 1999).

A.

The district court denied Doves objection to the inclusion of the 118 galls sale as relevant conduct for sentencing purposes. Its reason- ing was explained in its previous order denying Doves motion to dis- miss Count Three of the original indictment,² which charged that Dove violated Virginia law and the Lacey Act in connection with the 118 galls sale. See United States v. Dove, 70 F. Supp.2d 634, 636-39 (W.D. Va. 1999).

As a threshold matter, the Government argues that"non-benign" conduct may properly be considered as relevant conduct. However, if conduct which is not illegal may be relevant conduct because it is "not benign," this approach would involve sentencing courts in the impossibly subjective task of determining the relative "benignness" of various legally permissible acts, and "would allow individuals to be punished by having their guideline range increased for activity which is not prohibited by law but merely morally distasteful or viewed as simply wrong by the sentencing court." United States v. Peterson, 101 F.3d 375, 385 (5th Cir. 1996); see also United States v. Wilson, 980 F.2d 259, 262 (4th Cir. 1992) (noting that the task of a district court in determining the amount of loss is to determine the amount "that is attributable to [the defendant's] criminal conduct"); United States v. Dickler, 64 F.3d 818, 830-31 (3rd Cir. 1995) (agreeing that "relevant conduct" under S 1B1.³ must be criminal conduct). We thus conclude that relevant conduct under the Guidelines must be criminal conduct.

In its order denying Doves motion to dismiss Count Three of the original indictment, the district court held that Count Three properly charged (1) a sale of wildlife in violation of Va. Code Ann. S 29.1-553,3 and (2) transportation of the illegally sold wildlife in interstate com- merce. Dove, 70 F. Supp.2d at 638-39. Although it was actually Stump who transported the 118 galls into Virginia, the district court found that Dove placed the galls in interstate commerce by selling them to Stump because Dove believed that Stump would take them to Virginia and resell them. Id. at 639.

The Lacey Act is a federal statute that imposes federal penalties for certain violations of state law, and provides in part that it is unlawful for any person "to import, export, transport, sell, receive, acquire, or purchase in interstate or foreign commerce . . . any fish or wildlife taken, possessed, transported, or sold in violation of any law or regu- lation of any State." 16 U.S.C.A. S 3372(a)(2)(A) (West 2000). Thus, Dove's conduct did not violate the Lacey Act unless the wildlife he sold had been "taken, possessed, transported or sold in violation" of Virginia law. Id. The only Virginia provision which the Government argues as a basis for finding Dove's conduct illegal is S 29.1-553, and that provision, we conclude, prohibits the sale of the bear galls at issue in this case, but not their transportation or possession.⁴

In its ruling, the district court relied upon our decision in United States v. Gay-Lord, 799 F.2d 124, 126 (4th Cir. 1986), in which we held that a defendant who sold illegally taken rockfish to federal agents "knew that the rockfish would be transported in interstate com- merce and took the steps that began their travel to interstate markets," and thus violated the Lacey Act. Id. at 126. Gay-Lord, however, is distinguishable. In that case, it was uncontroverted that the rockfish sold in interstate commerce had first been taken in violation of state law. Id. at 125. Here, no argument is made that the 118 galls were taken, possessed, or transported in violation of the law of any state; thus, unless Virginia law prohibited the sale in West Virginia of the 118 galls, Dove's act of placing them into interstate commerce did not violate the Lacey Act. The standard which must be met to satisfy the "interstate commerce" aspect of the Lacey Act is not a demanding one, as Gay-Lord illustrates. But Virginia's principles of criminal jurisdiction, as the following discussion illustrates, are not coexten- sive with the federal definition of interstate commerce, and the Lacey Act is not violated unless the animal parts which move in interstate commerce have been "taken, possessed, transported or sold" in viola- tion of state law.⁵

While the district court interpreted the telephone conversations between Dove and Stump and the subsequent activity of the...